Page 220 - ELT_1_1st April 2020_Vol 372_Part

106 EXCISE LAW TIMES [ Vol. 372

charge. Unless otherwise provided by a deeming provision to show that
packing or refilling the chemical or the gas amounts to manufacture, the ac-
tivity cannot be manufactured. Such deeming provision has been intro-
duced into the chapter from 1st March, 1997 onwards. We are concerned
with the period prior to this and therefore do not consider it necessary to
examine whether the activity of the appellant would be manufacture within
the meaning of the amended provision.
27. Further in the case of Mahavir Spinning Mills Ltd. (supra) wherein
the issue before this Tribunal was whether the duty paid on paraffin wax in
lump from the market, and after melting, transfer it in the moulds to get the
shape of washers for using in the binding machine for waxing the sewing thread
and as such the activity amount to manufacture or not. In the said case, this Tri-
bunal has observed as under :-
10. In the instant case not the character, but only shape of the wax is being
changed by the respondents in order to use it more conveniently and
properly in their winding machines for waxing the sewing thread. They
procure duty paid wax in lump form from the market, and after melting,
transfer it in the moulds to get the shape of washers. The basic character of
the wax remains the same and only new shape is given by them in order to
use the same in the winding machine for waxing the sewing thread. No
knew or different article or commodity is thus manufactured by them. The
process adopted by them for changing the form of the wax from lump to
washers cannot be equated to the process of manufacture keeping in view
the test of manufacture laid down by the Apex Court in the above referred
cases. Therefore, the impugned order of the Commissioner (Appeals) hold-
ing the product in question (wax washers) to be not dutiable being not a
manufactured product is perfectly valid and deserves to be affirmed.
28. On the analysis of the above cited judgments, we find that the char-
acter, name and use of the printing ink does not change. Therefore, the process of
refilling and relabelling which enables the products to be used with printing ink
does not amount to manufacture
29. We find that the Commissioner has classified the goods of sub-
heading 8443 30 10 as parts accessories of the goods of Heading 8443 39 as ma-
chines classifying under Heading 8443 39. The Commissioner has held as new
product classified under the aforesaid heading has come into existence amounts
to manufacture. This approach is totally erroneous as the printing ink has been
imported in bulk drums which are never questioned by the department but the
Commissioner has classified the impugned items under sub-heading 8443 30 10
by classifying the item as parts of printing ink would not render the activity re-
filling/relabelling amount to manufacture. Therefore, the activity undertaken by
the appellant does not amount to manufacture. We also note that the fact the
empty containers are procured from the third party and ink is imported which
are not manufactured by the appellant. The containers so-called parts of printer
are procured and ink is filled into the same and cleared as such. There is no
change in the name, character and use of the so called parts. Therefore, even if
the classification is taken to be correct, the test of manufacture is not satisfied.
30. Section 3 of Central Excise Act, 1944 levied excise duty and which is
reproduced below :

EXCISE LAW TIMES  1st April 2020  268